When J-dog told me about this Wisconsin case the other day, I planned on posting about it. But after reading, and think, and reading again, I thought it was just so pathetically bad on every conceivable end to be worth the time it would take to make sense of it, particularly given that it was such an inconsequential decision.
I was wrong. Both the Wall Street Journal and the ABA Journal picked up on the subject. And both send a confusing message, which means that somebody has to straighten things out. The issue is whether a police officer can search a cellphone as part of a search incident to arrest.
The mid-level appellate decision from Wisconsin’s 1st District Court of Appeals in the case of Jermichael James Carroll was just a botch all around. The facts of the case show that Jermichael was a pathological narcissist who kept pictures on his cellphone of such diverse niceties as smoking a blunt, holding automatic weapons and surrounded by coke and cash.
Then, Jermichael thought it smart to drive around 60 in a 25 mile zone to attract a little attention. Then, Jermichael thought it smart to try to make a run for it when he stopped. They Jermichael thought it smart to run with his phone on and open and in his hand, so that it could be confused with a weapon. Then Jermichael decided to drop it on the ground with the phone on and open, so his fabulous photos of himself would be readily visible. So start with the fact that Jermichael’s a genius.
The decision goes on to note that his appellate lawyer made the strategic decision to ignore the prosecution’s argument on appeal that Detective Belsha, the arresting officer, answered a phone call asking in code for four and a half ounces of cocaine, which alone would serve to legitimize a search warrant for Jermichael’s cellphone.
And the appellate court chose to reverse the hearing court’s suppression based on a theory that was never argued below, choosing instead to leave untouched the issue of whether a police officer can search a cellphone as a search incident to arrest.
The WSJ article discusses the concerns of law prof Adam Gershowitz:
Adam Gershowitz, a professor at the South Texas College of Law, argues law enforcement officials are flirting with a dangerous invasion of privacy under the “search incident to arrest” doctrine, which allows officers to search “containers” on the person of or within the reach of suspects without probable cause.
The doctrine is designed to protect police from a suspect who could reach for a hidden weapon and to prevent suspects from concealing or destroying evidence. Mr. Gershowitz argues that iPhones and other “smart” devices are, in the eyes of the law, now nothing but containers subject to warrantless search.
Welllll, kinda. Sorta. I’m sure that cops see cellphones as a great source of incriminating evidence and can’t even begin to imagine why they shouldn’t be allowed to wedge it into the search incident to arrest exception so that they can immediately check them out and enjoy whatever goodies are to be found. Like very handsome pics of Jermichael smoking a blunt.
But that doesn’t mean that any court has ever agreed with, or upheld, the mangling of the search incident exception to allow for the search of a cellphone. The WSJ even quotes one of my favorite lawprofs, Orin Kerr:
“I don’t think I’ve seen yet a case where police stop someone and for no apparent reason start searching through their iPhone,” says Orin Kerr, a professor at George Washington University Law School.
Yes, Orin stuck that qualifier (“for no apparent reason”) in the middle of the quote, but that doesn’t change the fact that there are no decisions that allow a cellphone search as a search incident.
The search incident to arrest exception permits a police officer to search the “grabbable area” around a defendant to make sure that there are no weapons that could be used against him and no evidence that could be destroyed. Granted, some courts have extended it to the point of absurdity, allowing searches of places where the defendant once was but no longer is, using one of my favorite judicial tricks, remembering the rubric while forgetting the rationale.
But as of now, no one has been able to articulate a theory that would make a cellphone a threat to the safety of an officer. While the cops would be allowed to seize the cellphone itself, as it might be evidence should possession of a cellphone come into play (as it frequently does, since “cellphones are the tools of the drug trade”), the contents within are not at risk of being lost and are available, should there be probable cause, for search upon obtaining a warrant.
In fairness, Gershowitz has an agenda, seeking laws to protect the privacy of electronic devices from police, that is in itself both worthy and quite appropriate. These devices are our modern day diaries, places where we keep information about ourselves and our lives that are intended for no eyes other than our own. While there may be no decisions to date that would allow a cop to inspect our devices at will, there are plenty of judges out there who may be inclined to render decisions that would allow cops free access.
But this suggestion that this is the case at present, and that a search of a cellphone under the search incident exception has been judicially approved, is wrong. To say otherwise is to suggest to both cops, who will seize upon this suggestion to search anything electronic device they can get their hands on, and some of our less-thoughtful judges, who think that if somebody else has already allowed it, they can allow it too, that this is a done deal. It’s not. It shouldn’t be.
So while a cop may be allowed to seize a perp’s IPhone, he’s still not permitted to search it without a warrant. And let’s keep it that way.